It would be easy to assume that, because they are impartial
officers of the court who simply record other people’s arguments, court
reporters are free from complex ethical considerations.

It would also be a mistake.

The issues that surround court reporting ethics impact much
more than the quiet stenographer sitting demurely on the sidelines. Court
reporters have a far more active role in your case than might be readily
apparent, controlling not only how accurately your transcript reflects what
transpired but also how quickly and thoroughly you are able to prepare your
evidence based on that transcript.

"Attorneys want to make a strong case," says Dianne
Cromwell, longtime court reporter and owner of the Boise-based firm Tucker
and Associates. "If there’s a question about whether the court
reporter has an interest in one side, that could be an issue before the judge."

The National Court Reporters’ Association (NCRA) has
compiled a list of 10 basic guidelines to help ensure reporter impartiality
and fairness. This Code of Professional Ethics sets out the standards of
behavior that citizens, attorneys and judges have a right to expect from
a member of the organization.

"Court reporters are supposed to be impartial, just like
a judge," Cromwell says. "Our code of ethics is in alignment with
the canons the judges abide by."

Appropriately, first on the list is a commitment to impartiality.
It specifically details that all parties in a case should be offered the
same services. While this means that a court reporter can’t offer a
copy of the video to you but not to opposing counsel, it also means that
you should never receive your deposition transcript a mere day before a big
hearing, unaware that the other party got his or her copy a week ago.

This is one reason that trial presentation services are a subject
of some contention in the court reporting community. In addition to regular
deposition services, some firms offer to assist one side in preparing their
case, doing much of the work preparing documents and technology to make for
stronger presentation.

NCRA’s position is that it is permissible for a court
reporting firm owner to also run a trial presentation service, even in the
same case, so long as the two businesses are run separately and so long as
all parties are informed of the firm’s involvement with one side.

James DeCrescenzo Reporting has been in business in Philadelphia
for 24 years, and three years ago, DeCrescenzo decided to move into the trial
technologies field.

"It just seemed like a natural progression from court
reporting," he says. "Our clients started to ask us to help them
with projects preparing for the courtroom, and I saw an opportunity there."

Now, three years later, both businesses are flourishing, and
DeCrescenzo — a member of NCRA and other professional organizations — continues
to focus on handling them "the right way."

"Court reporters ethically are obligated to be totally
neutral, and in trial presentation, you are obligated to be advocates for
one side. There’s a contradiction there, a cross-purpose," he
says.

To handle that contradiction, DeCrescenzo keeps his businesses
stringently separated, with not only different names, but also different
employees; even the advertising literature has been designed to have completely
different looks and feels to avoid the possibility of confusion.

The two businesses share many overlapping clients, and DeCrescenzo
is careful to be as aboveboard as possible. For example, one day, a trial
technologies employee came back from a day in court with a shared client
and reported that opposing counsel was also a court reporting client. DeCrescenzo
quickly wrote a letter assuring the client that the neutrality of his court
reporter would never be an issue.

"He had no problem with it," DeCrescenzo says.

But not everyone is as scrupulously careful as DeCrescenzo,
and some court reporters feel that the idea that you could walk into court
and see someone from your reporting agency sitting at opposing counsel’s
table violates the whole idea of neutrality and compromises the record, if
not in fact then at least in appearance.

Linda Farmer and her partners have run Farmer Arsenault Brock
out of Boston since 2000, and they have consciously chosen not to expand
into trial preparation.

"I realize there are a lot of people who do it, and it’s
a matter of a difference of opinion," she says, "but we would have
a problem with it."

She says that it is a reporter’s job to be an officer
of the court — generally, the reporter is the only neutral person in
the room.

"But when it comes to trial presentation," she says, "you’re
working for one side, and it’s hard to see how you would get around
the bias issue without constructing some sort of Chinese wall within the
business."

The appearance of bias is also the reason some reporters abstain
from contracting, a practice common in the court reporting community and
in the general marketplace. Many reporters offer discounted and expedited
services in exchange for being added to "approved vendor" lists
for law firms and parties such as insurance companies.

It is, many reporters have pointed out, a perfectly acceptable
system in the free economy, and one well-suited to the fairly inelastic legal
market.

Despite the practice’s prevalence and legality, however,
there are some who object to the idea that court reporting should be run
in the same way as any other business.

In 1997, after a heated discussion known as "The Great
Debate," the NCRA board of directors resolved to lobby against contracting,
expressing concern that treating the court reporter’s role as a commodity
in this way compromises the integrity of the profession.

The next year, the American Judges Association passed a resolution
to support anti-contracting legislation, stating that "court reporters
are officers of the court whose impartiality, as with judges, must remain
utterly beyond question."

To eliminate the appearance of preferential treatment, NCRA
includes a gift-giving limit; the value of the gifts given by a court reporter
to each client cannot exceed $100 per year — not because he or she
doesn’t think you are worth it, but because it is prohibited in order
to maintain the integrity of the profession.

Judith Torch has owned Malibu Court Reporters in Los Angeles
for 40 years, and in that time she has seen great changes in the way reporters
approach their jobs.

"I’ve seen this profession turn into a business," she
says.

She recalls an incident 10 years ago in which a reporting firm
in the Beverley Hills area offered gifts redeemable with transcript pages
ordered — gifts ranging from hour-long massages to limousine rides
and custom-made suits.

"It was shocking," she says. "It was so over
the top."

Torch notes that the proverbial scales in the justice system
are supposed to be balanced, and if a court reporter is willing to give one
side preferential treatment through large gifts, there is a definite imbalance.
And, she points out, any attorney who is being courted with such gifts has
much to think about.

"If there is a breach of ethics and one side gets more
than the other now," she says, "what’s to stop it from swinging
the other way?"

The guidelines for Certified Shorthand Reporters (CSRs) in
Oregon are even stricter. According to Oregon statutes, an Oregon CSR should
never offer a gift or incentive valued at more than $50; that is, if your
court reporter is throwing opera tickets around or wining and dining you
at El Gaucho, something is amiss. Either said court reporter is not a CSR,
or he or she is not abiding by the rules.

Not every court reporter is a CSR, and not every CSR is a member
of NCRA. While all court reporters are bound by certain laws, not all choose
to be bound by these ethical guidelines; the rules may be mandatory within
the certifications, but the certifications themselves are not.

Hiring CSRs who are also NCRA members is an important way to
ensure that your court reporter is being held to high ethical standards.
You can request a CSR at the time you schedule your deposition, and then
take a look at the certification page when you get your transcript to confirm;
if your reporter was a CSR, it will say so on the stamp next to the signature.

There are a number of other ways you can take control as well:

Ask for itemized invoices, if you don’t receive them
already. Reporters are required to provide them under ORS 45.138(2)(b). It’s
too easy for a lump-sum bill to cover up extra charges.

If your CSR is contracted to another party in the case, make
sure you are getting the same rates. Oregon’s statutes allow for reporter
contracting, but they also require that the existence of the contract be
disclosed, and that all parties receive their transcripts at the same time
and be charged the same rates, original and copy fees notwithstanding (ORS
45.138(2)).

When you have a deposition taking place in Washington, verify
that your court reporter is a Washington notary. Oregon CSRs have the power
to swear in witnesses, but in Washington, only notaries can perform that
function — and if it comes to light after the fact that your witness
was not legally sworn in, opposing counsel may challenge the authenticity
of the transcript.

Because this column can only hit highlights, consider reading
the Oregon Revised Statutes regarding court reporters to familiarize yourself
with all the rules your reporter should be following. They are available
on the OCRA website at www.orcra.org/legislative.htm.

Because both NCRA and the CSR Code of Conduct specify that
reporters must avoid both the fact and the appearance of impropriety, if
you feel that something is wrong, that means that something most likely is.
If it walks like a red flag and quacks like a red flag, it probably shouldn’t
be happening in the first place, and with a clear understanding of court
reporting ethics, you have the ability to hold your reporter accountable.

ABOUT THE AUTHORRobin Nodland is a founder of Portlandís LNS Court Reporting and a certified shorthand reporter (Oregon and Washington), registered diplomate reporter, and registered realtime reporter. Her professional affiliations include the National Court Reporters Association, the Oregon Court Reporters Association, the Society for the Technological Ad vancement of Reporting and DepoSpan.